Kostovetsky v. Rockaway Hunting Club

Full title: Alex Kostovetsky, et al., appellants, v. Rockaway Hunting Club, respondent.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Feb 18, 2015

2015 N.Y. Slip Op. 1421 (N.Y. App. Div. 2015)

1 N.Y.S.3d 846

Opinion

2014-02910 Index No. 6063/12

02-18-2015

Alex Kostovetsky, et al., appellants, v. Rockaway Hunting Club, respondent.

Tsyngauz & Associates, P.C., New York, N.Y. (Michael Treybich of counsel), for appellants. Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Christian Browne and Jenna Gallagher of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

THOMAS A. DICKERSON

JOSEPH J. MALTESE

BETSY BARROS, JJ.

Tsyngauz & Associates, P.C., New York, N.Y. (Michael Treybich of counsel), for appellants.

Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Christian Browne and Jenna Gallagher of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiffs have a prescriptive easement over certain real property belonging to the defendant, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jaeger, J.), dated January 6, 2014, which granted the defendant's motion for summary judgment.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiffs do not have a prescriptive easement over certain real property belonging to the defendant.

Contrary to the plaintiffs' contentions, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs' claim regarding the disputed property in this matter is based on their possession and occupancy of the property, and therefore is inconsistent with an easement by prescription (see generally DiLeo v Pecksto Holding Corp., 304 NY 505, 511; Griffiths v Morrison, 106 NY 165, 171; Bass v D. Ragno Realty Corp., 111 AD3d 863, 865; Paradise Point Assn., Inc. v Zupa, 22 AD3d 818, 819). Inasmuch as the plaintiffs failed to raise a triable issue of fact in opposition to this showing, the Supreme Court properly granted the defendant's motion for summary judgment.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiffs do not have a prescriptive easement over the real property belonging to the defendant (see Lanza v Wagner, 11 NY2d 317, 334).

MASTRO, J.P., DICKERSON, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court